SERVICE PROVIDER SELECTION AND CO-SOURCING: THE KEYS TO ESTABLISHING A COST EFFICIENT AND INSTITUTIONAL QUALITY HEDGE FUND INFRASTRUCTURE

Transcription

1 SERVICE PROVIDER SELECTION AND CO-SOURCING: THE KEYS TO ESTABLISHING A COST EFFICIENT AND INSTITUTIONAL QUALITY HEDGE FUND INFRASTRUCTURE EDITORS MARSHALL TERRY South Ferry Capital Management, LP TIMOTHY HUGHES Oakum Bay Capital, LLC ART MURPHY Abacus Group, LLC NATHAN MULLER NSM Advisors, LLC CONTRIBUTORS SUBHRA BOSE Finomial Corporation CHRISTOPHER WELLS Proskauer Rose LLP INGRID PIERCE Walkers JEFFREY KOLLIN & JEFFREY STOMSKI Rothstein Kass FRANK NAPOLITANI Concept Capital Markets, LLC GEOFF RUDDICK International Management Services Ltd. JOHN KUSHNER Northern Trust Hedge Fund Services LAUREN TEIGLAND-HUNT Teigland Hunt LLP GEOFF SURKAMER Backstop Solutions Group, LLC HEATHER MOUNT Kinetic Partners DAN CONNELL & WILLIAM LIVINGSTON ConceptONE, LLC JACK JENNINGS Willis North America 2013 all rights reserved. No part of this publication may be reproduced or used without the prior permission of the contributors.

2 This material is not an offer to sell or solicitation of an offer to buy any interest in any investment fund. Information in this presentation has been obtained from sources believed to be reliable, but its accuracy and completeness are not guaranteed. Any opinions, statements or thoughts contained herein may not reflect those of any individual contributor, contributing firm, or any affiliates and subsidiaries and are subject to change at any time without notice. The information contained herein are the opinions of the individual authors and do not constitute the rendering of legal, accounting or other professional advice.

3 INTRODUCTION What is the Hedge Fund Operational Working Group? The Hedge Fund Operational Working Group (HedgeFundOWG) is a group of hedge fund CFOs and COOs and service providers who have come together with a purpose: to provide guidance for current and prospective hedge fund managers to effectively launch and grow their businesses. The founders of HedgeFundOWG seek to build a community of participants and a forum to share ideas and information, which should significantly help both emerging and established hedge fund managers address the challenges of building and sustaining their business. About the following white paper The current state of regulatory affairs and investor due diligence and transparency demands (particularly in the aftermath of several highprofile frauds) has created an onerous and potentially expensive environment in which to manage a hedge fund. As a result of these increasing demands, new and established hedge fund managers have to develop institutional quality infrastructure if they want to grow and attract new monies. Meanwhile, the amount of capital available to develop the infrastructure at most hedge fund managers has vastly diminished. Fees have compressed and the AUM available at launch is typically a shrinking fraction of what it once was. The authors of Service Provider Selection and Co-Sourcing: The Keys to Establishing a Cost Efficient and Institutional Quality Hedge Fund Infrastructure sought to create a document to help current and prospective hedge fund managers assess and understand the requirements needed to develop an institutional quality infrastructure. Many documents are available that purport to do this; however, they are typically published by a single service provider and are often little more than marketing pieces. This document was the brainchild of market participants and experienced professionals who run hedge fund operations. They leveraged their relationships with individuals at trusted service providers to develop the content of the individual sections of this document. To avoid conflicts of interest, the authors have maintained editorial control and avoided overt references to individual companies and products. The challenge presented to the contributor group involved two parts. The first was to define the questions that a hedge fund CFO or COO should ask service providers in order to gauge whether a provider is the correct fit for their organization and to help them make key determinations about how to structure and organize their company. The second was to discuss the potential answers that they might receive. The net result of this collective exercise is the following white paper, which is designed to serve as an outline or playbook for managers who are launching a new fund, managing the business growth, or simply interested in making sure that the infrastructure they have in place is consistent with the message, mandate and mission of the firm. It is typically during one of these phases that firms could endure complications that put the overall business in jeopardy. This document is not intended to convince hedge fund entrepreneurs of the need for a strong institutional quality infrastructure it assumes they recognize the need and that a strong infrastructure will benefit their business, the investment process and the investor. It is instead meant to offer a better understanding of the nuances of finding the right balance between co-sourcing 1 and in-sourcing, and, when these entrepreneurs opt to co-source, to guide them through vendor selection. 1 Co-sourcing is a practice of service in a business where a service is performed by staff inside an organization and also by an external service provider. It is based on a long-term relationship and emphasizes values traditionally associated with partnering rather than with vending. It may focus on one or more aspects of the internal operational functions of a hedge fund. The advantage of co-sourcing versus outsourcing is that it can reduce risks by bringing transparency, clarity and better control over the processes outsourced. 3

4 PAGE 2 TABLE OF CONTENTS THE PROBLEM: HOW TO ESTABLISH A COST EFFICIENT AND INSTITUTIONAL QUALITY HEDGE FUND INFRASTRUCTURE...5 SUBHRA BOSE, Finomial Corporation LEGAL ISSUES RELATING TO FORMATION OF A HEDGE FUND...9 CHRISTOPHER WELLS, Proskauer Rose LLP LAUNCHING AN OFFSHORE HEDGE FUND IN THE CAYMAN ISLANDS...11 INGRID PIERCE, Walkers CHOOSING AN ACCOUNTING/AUDITING FIRM...14 JEFFREY KOLLIN & JEFFREY STOMSKI, Rothstein Kass CHOOSING A PRIME BROKER...16 FRANK NAPOLITANI, Concept Capital Markets, LLC ROLE OF INDEPENDENT DIRECTORS...18 GEOFF RUDDICK, International Management Services Ltd. KEY CONSIDERATIONS WHEN CHOOSING AN ADMINISTRATOR...23 JOHN KUSHNER, Northern Trust Hedge Fund Services WHAT TO CONSIDER WHEN LOOKING TO BUILD YOUR TECHNOLOGY INFRASTRUCTURE...26 ART MURPHY, Abacus Group, LLC CHOOSING QUALIFIED LEGAL COUNSEL FOR A HEDGE FUND S TRADING DOCUMENTATION...28 LAUREN TEIGLAND-HUNT, Teigland Hunt LLP BUILDING AN EFFECTIVE MARKETING STRATEGY AND PHILOSOPHY...32 IMPORTANCE OF CRM...35 GEOFF SURKAMER, Backstop Solutions Group, LLC IMPORTANCE OF ENGAGING A COMPLIANCE CONSULTANT...37 HEATHER MOUNT, Kinetic Partners CHOOSING A QUALIFIED RISK CONSULTANT AND RISK SYSTEM...40 DAN CONNELL & WILLIAM LIVINGSTON, ConceptONE, LLC WHAT TO CONSIDER WHEN IMPLEMENTING BUSINESS INSURANCE FOR HEDGE FUNDS...44 JACK JENNINGS, Willis North America 4

5 PAGE 5 THE PROBLEM: HOW TO ESTABLISH A COST EFFICIENT AND INSTITUTIONAL QUALITY HEDGE FUND INFRASTRUCTURE AUTHOR: SUBHRA BOSE, FINOMIAL CORPORATION Hedge Fund Infrastructure: The Practitioner s View We polled a number of hedge fund practitioners including portfolio managers, chief operating officers, chief compliance officers, risk managers, and operations professionals on how to create the optimal blueprint for a hedge fund manager s infrastructure. Our objective was to obtain the real users perspective on the infrastructure that is required to establish a hedge fund manager s platform rather than relying solely upon the views of the chief technology officer or the IT team. The poll started with the following question: What infrastructure capabilities would you need to run the front-to-back of the hedge fund operation? Once we gathered the answers, we wrote them on sticky notes and then posted them on a wall. The outcome can be best described by the picture below: Order Management Trading Mark to Market Portal SubDoc Security Master Market Data Reconciliation Investor Reporting AML Performance Portfolio Management PPM Marketing Side Letter Investor services Pretrade Compliance Infrastructure Trade receipt Counterparty risk Accounting Position Keeping Form PF Investment Decision Position Reconciliation Settlement Risk Management Redemption Execution Attribution Credit risk File share IQQ Exposure Subscription Historical Performance CRM Trade Acceptance Tax reports Trade Confirmation Back test Statements NAV Business Continuity Communication Collaboration Security Social Media Disaster Recovery Secure FTP AIMFD FATCA Compliance Monthly commentary At first glance this practitioner s view may seem to be a chaotic articulation of ideas and may not offer much by means of cohesive thought as to how each sticky note element needs to work together to run an efficient and cost effective business. This randomness, as represented by this smattering of ideas, represents the lack of cohesion of thought which often goes into the formation stages of the hedge fund manager s technological and infrastructure platform. Workflows remain mostly in people s heads and are not articulated or shared and are sparsely documented. This randomness often spans to client servicing and impacts the subscription process, the hedge fund s nimbleness and ability to provide timely regulatory compliance follow-ups and monthly reporting. 5

6 Domain Model: From Chaos to Organization As we organized a hedge fund manager s technology and infrastructure needs in groups of related areas or domains, things began to make more sense. TRADING Market data Security Master Order Management Execution Reconciliation Pretrade Compliance Settlement RISK MANAGEMENT SALES & MARKETING PPM SubDoc CRM Side Letter Historical Performance PORTFOLIO MANAGEMENT Investment Decision Position keeping Position Reconciliation Allocation Rebalance Performance Exposure Attribution Counterparty risk Credit risk Liquidity risk INVESTOR SERVICES Subscriptions IQQ Redemptions AML Trade Receipt Trade Acceptance Trade Confirmation Back test ACCOUNTING NAV Fund Accounting Mark to Market Asset Valuation Investory Accounting COMMUNICATION & COLLABORATION File share Secure FTP Social media Portal INVESTOR REPORTING Statements Tax Reports Monthly Commentary LEGAL & COMPLIANCE INFRASTRUCTURE Form PF FATCA Security Business Continuity Disaster Recovery AIFMD Employee Compliance Diagram 2: Hedge fund infrastructure needs, grouped by domains. The above diagram (or domain model ) contains a mix of data, documents, information and workflows. By looking at the hedge fund manager s required infrastructure picture holistically, we can identify potential overlaps or gaps, eliminate sources of inefficiency and manual processes and thereby reduce operational risk to the business. It can also enable a hedge fund manager to address increasing regulatory and transparency demands and streamline day-to-day operational processes within the firm. To achieve this, the hedge fund manager needs to develop a domain model like the one above to determine the best source (service provider, technology, in-house employee) for each solution. 6

7 Way of Thinking: Data, Documents, Information and Workflows While a domain model significantly helps to articulate the different business functions and the technology and infrastructure needed to perform them, it is not completely sufficient to shape the blueprint and the sourcing process required to acquire the needed components. The addition of other dimensions is necessary. For instance, thinking in terms of data, documents, information and workflows provides structure to the blueprint. At the end of this exercise the hedge fund manager should have one such technology and infrastructure blueprint that defines the hedge fund manager s specific needs, and maps the data, documents, information and workflows with the required technology solutions, service providers and internal responsible parties. WORKFLOW Business process Trading Portfolio Management Risk Management Marketing Investor Services Investor Reporting Fund Accounting Legal & Compliance Dashboards Portfolio Monitoring Risk Dashboard Inflows/Outflows Compliance Dashboard Document Access DATA Operational Data Security Trade Position Investor Subscription Holding Fund Term Data Warehouse & Analytics Time series data Performance Exposure Attribution/Contribution Investor Analytics DOCUMENTS Templates & Static Documents Subscription Notes Confirm Notes Pitch Book Offering Memorandum Manager Bio Due Diligence Questionnaire Compliance Guide Operations Manual Contracts, Reports, Filings, Correspondences Subscription Agreements Side Letters Investor Documents Tax withholding forms (W-9, W-8) Form PF Incorporation Documents Audit Packs Diagram 3: Data, documents, information and workflows (illustrative and not exhaustive) The source map helps to identify gaps and overlaps, and the integration requirements between technology applications, infrastructure and service providers. It can also enable a hedge fund manager to address increasing regulatory and transparency demands and streamline day-to-day operational processes within the firm. Once a sourcing map is created, the next step is to determine how to go about building the technology and infrastructure. Approaches to Developing the Blueprint Launching a hedge fund in days gone by involved far greater assets under management (AUM) at the time of launch, and higher fees than funds can collect today. As a result, hedge fund managers could embrace massive infrastructure projects in one of two ways: (1) build inhouse technology and develop specialized knowledge; or (2) hire outside consultants to coordinate the full infrastructure build and manage vendor relationships. Building in-house systems from scratch and hiring teams to manage those systems is both time consuming and cost prohibitive in today s marketplace. In addition, outsourcing the entire project to a third party is no longer a feasible solution. Not only because it is expensive, but 7

8 also because hedge fund managers in today s world are accountable for every aspect of their business to both investors and regulators. They need to understand how their systems work and to be able to articulate this to regulators, investors and prospective investors. They need to have their own relationships with providers they trust who offer both the best technology for their needs and the specialized knowledge to go along with it. They need solutions that are affordable and that can scale with them as they grow. The Role of Service Providers Today and the Development of a Co-sourcing Environment In today s environment, where the costs of running a hedge fund are increasing dramatically and the average AUM at launch is significantly less than it used to be, newly launched hedge fund managers are being forced to do more with less 2. This reality is not likely to change any time soon as the demands associated with regulatory reporting and investor transparency and due diligence will only continue to grow more onerous and complicated. As a result, hedge fund managers (new and established) need to find new ways to develop their technology and infrastructure solutions to meet these demands. Through the proper selection of service providers and the development of co-sourcing arrangements with its providers, a hedge fund manager can develop and manage an institutional quality infrastructure in both a cost-efficient and operationally sound manner. Co-sourcing is about building a partnership with each service and technology provider. The provider s team becomes an extension of the hedge fund manager s own staff, rather than acting as a completely separate entity, which establishes accountability and ownership on the part of the provider, and an open dialogue and collaboration between the provider and the hedge fund manager. The co-sourcing model emphasizes the involvement of both parties while allowing a firm to take advantage of best-of-breed technology and the specialized knowledge that its service providers offer. This access can be acquired at a fraction of a cost of trying to maintain and build the technology in house and employing teams of relevant subject matter experts. Administrator Auditors/ Accountants Law Firms Hedge Fund Manager Compliance Solutions CRM/IR Solutions INFRASTRUCTURE, TECHNOLOGY & SPECIALIZED KNOWLEDGE Risk Provider Insurance Broker IT Provider Technology Providers 2 According to a recent survey conducted by Citi Prime Finance, managers need between $250 million and $375 million of AUM in order to break even and survive off management fees alone. According to the survey, increased regulatory demands (e.g.; compliance with AIFMD, FATCA, mandatory clearing, Form PF, CFTC registration, Solvency II, MiFID II and the FTT) and investor due diligence and transparency requirements are the main reasons for the increase in operational expenses. (See, Citi Prime Services, 2012 Hedge Fund Business Expense Survey: Industry-Wide Benchmarks for Managing a Hedge Fund Organization, 2012.) 8

9 PAGE 9 LEGAL ISSUES RELATING TO FORMATION OF A HEDGE FUND AUTHOR: CHRISTOPHER WELLS, PROSKAUER ROSE LLP Q: What is the typical legal structure of a hedge fund? The typical hedge fund is usually organized with an onshore fund and an offshore fund. The onshore fund is typically organized as a Delaware limited partnership or limited liability company, and is intended primarily for U.S. taxable investors, who typically prefer to invest through a vehicle that is treated as a partnership for U.S. tax purposes. The offshore fund is typically organized in a no-tax jurisdiction, such as the Cayman Islands, and is intended primarily for non-u.s. investors, who want the benefit of investing through a tax blocker, as well as for U.S. tax-exempt investors, who want to invest through an offshore corporation that is not treated as a partnership in order to avoid unrelated business taxable income. Q: When should a master-feeder structure be used? In a master-feeder structure, the onshore and offshore funds co-invest as feeder funds through a jointly owned master fund. This structure has several advantages for the typical hedge fund manager. Generally, it is easier to administer, since all trading is done through a single master fund account, and the manager therefore does not need to allocate trades between two or more parallel funds. On the other hand, a manager of parallel onshore and offshore funds has greater flexibility to engage in tax-driven strategies in one fund that may benefit the investors in that fund, without incurring the costs of the strategies in the other fund. However, most managers decide that the convenience of a master-feeder structure outweighs the possible tax benefits of a parallel fund structure. Q: How is a typical hedge fund management company organized? The structure of a hedge fund manager will depend on the location of its business operations and owners. The typical U.S.-based hedge fund manager will be organized as a limited partnership or limited liability company. A limited partnership or limited liability company avoids a second level of corporate income tax that would apply if a corporation were used. Frequently, especially if the hedge fund manager is based in New York City, a second entity will be organized to receive incentive-based compensation paid in the form of an incentive allocation, or special allocation of profits. Q: When is SEC registration required? A fund manager based in the United States must register with the Securities Exchange Commission (SEC) as an investment adviser if it has at least $110 million in gross assets under management (before deducting indebtedness), or at least $30 million in the case of an adviser based in New York or Wyoming. However, there is an exemption for a manager who only acts as adviser to one or more private funds with aggregate gross assets of less than $150 million, and who does not have any separate managed account clients. 9

10 Q: When is CFTC registration required? A manager of a fund that trades futures or certain kinds of swaps may need to register with the Commodity Futures Trading Commission (CFTC) as a commodity pool operator (CPO) or commodity trading advisor (CTA). However, registration as a CPO is not required if either (1) the aggregate net notional value of futures and swaps subject to CFTC jurisdiction does not exceed 100 percent of a fund s net assets or (2) the aggregate margin and premiums for futures and swaps subject to CFTC jurisdiction do not exceed 5 percent of a fund s net assets. Q: What rules apply to employee benefit plans subject to ERISA? A fund manager can manage assets for employee benefit plans subject to the Employee Retirement Income Security Act of 1974 (ERISA). However, if employee benefit plans and certain similar entities, including IRAs and 401(k) plans, represent 25 percent or more of any class of interests in a fund, then the fund is deemed to constitute plan assets under ERISA, and additional requirements apply. Among other things, the manager will need as a practical matter to be registered with the SEC, and will be prohibited from engaging in any form of related party transaction, including cross trades with other managed accounts. Q: What other reporting obligations might apply? Don t ask. The federal government seems to have been working overtime recently to come up with new reporting and filing obligations that are potentially applicable to hedge fund managers. These may include SEC Form ADV Parts 1 and 2 (the basic form for registering with the SEC as an investment adviser); CFTC Forms 7-R and 8-R (the basic forms for registering as a CPO or CTA with the CFTC); SEC Form PF (to be filed by SEC-registered advisers with more than $150 million in gross assets under management); CFTC Forms CPO-PQR and CTA-PR (for CFTC-registered advisers); SEC Form D (to report a private placement of interests in a fund); SEC Schedules 13D and G (to report a 5 percent position in a U.S. public company); SEC Form 13F (to report management of at least $100 million in U.S. listed equities); SEC Form 13H (to report trading of U.S. listed equities equal to at least 2 million shares or $20 million in one day or 20 million shares or $200 million in one month); SEC Forms 3, 4 and 5 (to report a 10 percent ownership interest in a U.S. public company); Treasury International Capital System Forms; Bureau of Economic Analysis Forms; and Financial Crimes Enforcement Network Suspicious Activity Reports. Q: Any other practical advice? Get good legal advice. U.S. rules are very complex. In this regulatory environment, do not risk getting any part of the process wrong. 10

11 PAGE 11 LAUNCHING AN OFFSHORE HEDGE FUND IN THE CAYMAN ISLANDS AUTHOR: INGRID PIERCE, WALKERS Q: How long does the launch process normally take from start to finish? This is usually the first question people ask, and timing depends on various issues, including the structure and its complexity, how many third parties will be required to examine and sign documents and whether any strategic investors will be offered special terms by way of a separate class of shares or a side letter. The typical timeframe is approximately six weeks, although if the other service providers are already in place for example where they are already acting on behalf of the domestic fund things can move more quickly. This is because the relevant parties are already familiar with fee structures, service contracts and the usual methods of working. Negotiating commercial terms with independent service providers can be one of the most time-consuming elements of the process, particularly where a preexisting relationship is not already in place. Managers will want to match their fund strategy with an administrator that has the right technology in place. Additionally it will be important to confirm that the administrator (or another service provider) will ensure compliance with the relevant anti-money laundering regulations. An audit firm will need to be retained as all regulated Cayman Islands funds must have an approved auditor sign off on the fund s financial statements. This is quite straightforward as most of the established auditors are present. Where managers have no preexisting relationship, the domestic or Cayman audit firm will need to undertake an assessment of and due diligence on the manager before agreeing to a retainer. Prime broker and custodian relationships are usually established early on in the process and we often receive questions regarding when bank and brokerage accounts can be opened. Accounts cannot be set up in the name of the fund until it has been incorporated and directors have been appointed. It goes without saying that name of the fund must first be confirmed and be available for use. Q: What structures and vehicles need to be put in place for the fund? It is important to seek legal and taxation advice on whether it is appropriate or necessary to establish an exempted limited company (the typical hedge fund structure in the Cayman Islands), an exempted limited partnership or an exempted unit trust. In most cases it is the types of investors participating in the fund that will dictate its structure. Forming the fund itself is actually one of the quickest steps in the process. Assuming the proposed name of the fund is available, the company can usually be incorporated within 24 hours. Where an exempted limited partnership is used, the partnership must (under current law) have at least one general partner that is formed in or registered as a foreign company in Cayman. This means that the formation or registration of the qualifying general partner will need to take place before the exempted limited partnership can be established. 11

12 An exempted unit trust is established by declaration of trust by the trustee. It is quite unusual for the trustee to declare a short form declaration of trust that does not include all of the fund terms merely to facilitate the establishment of the trust, although this can be done if time is of the essence. In most cases, the unit trust is established towards the end of the launch phase, but obviously prior to execution of any of the service provider agreements that must be entered into by the duly appointed trustee. Q: Will the fund offer voting or non-voting shares? Participating interests offered to investors may have full or limited voting rights and this is a key question at the formation stage. Where participating interests are non-voting, typically the fund will be established with a class of voting interests which will control the right to vote on all matters (except for any material adverse change in the rights attaching to the investors interests). For example in a corporate structure, the holders of the voting shares can pass resolutions to amend the fund s articles, control the composition of the board of directors and pass other shareholder resolutions. A decision will therefore need to be made about who holds the voting shares. In many cases, the voting shares are held by the manager or an affiliate. However, there may be tax and other considerations which dictate that the voting shares should be out of the control of the manager or the manager s group of companies and held by an independent third party. In those circumstances, a Cayman Islands charitable or STAR trust may be established to hold the voting shares. Even if investors are offered voting shares, it is possible to structure the fund such that non-voting shares can be created and issued to a particular investor or class of investors at some future date. Q: Will independent directors be on the board? The Cayman Islands Monetary Authority (CIMA) requires that regulated funds have at least two directors, however many funds have threeperson boards. According to research conducted by Walkers on the regulated funds established for our clients in 2012, approximately 72 percent of new funds featured an independent director, up from 64 percent in 2011, so this is a growing trend with most new funds having a majority of independent directors. Many clients have noted the benefits of having directors with diverse backgrounds so that each has some relevant experience to bring to the table. For example, directors with a fund administration background, an accounting background, and experience in industry or in the legal field all have different strengths to offer and the right choice can result in a balanced board. Q: What is the role of offshore counsel? The role of offshore counsel is centered on the establishment of the fund structure, drafting constitutional documents, providing advice on the Cayman legal and regulatory issues and preparing the documents required for launch. Once the fund is established, offshore counsel typically acts for and advises the fund. Assuming the manager has onshore counsel, the onshore firm tends to prepare the offering document, particularly if a U.S. feeder fund is involved. When starting up, most managers spend a lot of time engaging with their onshore counsel and tax advisers, which is perfectly proper. It is also important to retain offshore counsel at an early stage to help advise and assist on some of the issues outlined in this article. Managers should think about whether the key terms of the offering should be fully set out in the fund s articles of association, being the principal governing document of the fund, or whether the articles should be drafted more broadly to give greater flexibility and describe the more detailed terms of the shares in the fund s offering document. There are some advantages to having the latter approach as hardwired provisions may be difficult to change at short notice once the fund is up and running. On the other hand, some directors prefer to have clear and detailed provisions in the articles so that there can be no argument about what course the fund should take in particular circumstances. These are issues that should be discussed with counsel before the drafting process begins. 12

13 Prior to launch, the directors and each of the key service providers need to review and approve the relevant provisions in the offering document and sign off on the description of their firm and the services they are providing to the fund. Also prior to launch, offshore counsel will prepare the launch packs, including the draft form of board minutes for the initial launch meeting, and liaise with the regulator regarding the registration of the fund. Q: What costs are typically involved? There is always great pressure to contain costs when setting up a new fund so this is an important issue for any manager. The complexity of the structure and the number of entities involved will have a major bearing on the costs involved. Other factors include the extent to which the fund documents require bespoke drafting while fees for directors and service providers can vary widely so managers should do their homework before committing to an annuity cost. Each Cayman Islands-domiciled entity must have a registered office in the Cayman Islands and must therefore pay annual registered offices fees to an approved provider. The fund will also incur annual government fees and regulatory fees (if CIMA registered). Q: What else should be considered? It makes great sense for new managers to also speak with their colleagues in the industry. Many managers have gone down this route before and can share their experiences about what worked well for them in the process. 13

14 PAGE 14 CHOOSING AN ACCOUNTING/AUDITING FIRM AUTHOR: JEFFREY KOLLIN & JEFFREY STOMSKI, ROTHSTEIN KASS If you ask an auditor how to select the best audit/accounting firm, be prepared for a detailed analysis, supported by independently obtained and verified information. In the interest of everyone s time, that detailed analysis boils down to a few key questions that stratify the auditor population: Q: Can I grow my business and not outgrow my audit or tax firm? Cheaper and bigger is not always better; in fact, it very well may be a paradox. Service provider selection must be aligned with your business plan and growth model; select an auditor and tax accountant that will help you convert your vision into reality. WHAT TO LOOK FOR: Brand recognition. Investors demand high-quality service providers. Inquire whether the firm is a check-the-box on institutional investors due diligence questionnaires. Breadth of service. You may never need the firm s litigation support, business advisory or family office group, but it s reassuring to know they are there if you need them. Inquire about what other service offerings are available; by doing so you will also learn about the depth of the organization. Client base. Industry leaders typically have substantial practices dedicated to the alternative investment industry. Key statistics include the number of alternative investment clients and the number of clients that are registered investment advisers (RIAs). Always ask for references. Public Company Accounting Oversight Board (PCAOB) registrant. Registration with the SEC, from a growth perspective, is a good thing; it means your assets under management have grown to a substantial amount. RIAs are required to engage an auditor that is registered with and inspected by the PCAOB. Not engaging a PCAOB registrant in initial selection process guarantees that a successful fund complex will have to change auditors in the future. Offshore Capabilities. Depending on your investor base, domiciling one or more entities in a foreign jurisdiction may be required. Regulations in the Cayman Islands, Ireland and Luxembourg require audit firms have a physical office in the specific country. Q: Do they understand my business and do they have the resources to properly service it? You are not just selecting an auditor or accountant, you are selecting an adviser. This trusted adviser must understand your business and have the resources and industry-specific knowledge to guide you through each stage of your business life cycle. WHAT TO LOOK FOR: Engagement staff: low turnover and dedicated to alternative investments. Firms with professionals and resources specifically dedicated 14

15 to the alternative investment space are better suited to service your engagement, answer your questions, and offer guidance. Accounting and audit firms are not immune to attrition or turnover; firms with professionals dedicated to the industry make the transition less painful. Firms with lower-than-industry-average turnover rates are typically home to happier employees. Inquire about the firm s core values and determine if they align with your business core values. Access to senior practice leaders. Few things are more excruciating than waiting for a service provider to return a call regarding a sensitive accounting or tax issue. You are looking for a firm with accessible practice leaders, and assurance that the first time you speak with the engagement principal during the proposal process will not be your last. Inquire about each team members roles and responsibilities as they relate to key deliverables and ask for references from current clients. Thought leadership. The firm should provide you with market intelligence around a variety of topics as well as plain-english advice and practical strategies for implementation: o Maximizing tax efficiency by selecting the proper legal structure and making the most beneficial Internal Revenue Code (IRC) elections o Utilizing tax strategies and financial products to minimize tax exposure o State and local tax issues and developments o Regulatory requirements such as Form ADV, Form PF, Form CPO-PQR (CFTC), and FATCA as well as the expertise to guide you through the process o Impact of ever-evolving GAAP and financial statement disclosure requirements o Impact and industry practice response to recent regulatory actions and enforcements o Best practices regarding regulatory requirements and examinations, internal controls and valuation policies and procedures (to name a few) Superior (use of) technology. Like it or not, technology plays a significant role in our daily lives. When used correctly at an audit or accounting firm, it can improve overall efficiency and delivery. If technology is overleveraged, the overall learning process and human element associated with a firm s team members is greatly diminished. You are looking for the right balance where the firm s team members are able to provide a meaningful explanation behind a specific procedure and process, not just answer, I hit the button. Q: How will my accountant/auditor interact with my other service providers? No matter what the deliverable, all of your service providers must work together. Communication and ownership of specific steps in the process are the keys to success. HOW TO MAKE IT HAPPEN: Planning meetings: When done correctly, planning sets the pace and tone of the engagement. Invite all key players at all interested service providers. Discuss areas that present a challenge to your business: those areas are what will most likely slow down the process. Timing is everything. Create a timeline for key deliverables that is realistic and agreed upon by all interested parties. Status calls: The perfect combination of micro-management and market efficiency. The goal here is to hold people accountable for the deliverables outlined in the timeline, understand variances and ensure any issues are timely communicated. 15

16 PAGE 16 CHOOSING A PRIME BROKER AUTHOR: FRANK NAPOLITANI, CONCEPT CAPITAL MARKETS, LLC Q: What are the key characteristics and capabilities to look for when choosing a prime broker? Multiple custodian choices New launches are often precluded from working with large prime brokers due to smaller asset bases, so many new launches obtain highquality prime brokerage through an introducing broker (IB) relationship. The IB introduces hedge fund managers to the custodian(s) and provides the middle-/back-office roles on behalf of the custodian. The hedge fund s securities remain at the custodian, which provides custody, clearing and execution of trades. Because the IB aggregates accounts on behalf of the custodian, the large minimum levels often required by the large prime brokers do not come into play. Often a hedge fund manager can become multi-primed at a small asset level to adhere to best practices often required by institutional investors. Securities lending Depending upon your investment strategy, you may need a prime broker that is able to provide securities lending across many different asset classes and geographies. Financing Depending upon your investment strategy, you may also require various types of financing to achieve your objectives. You will want to choose a prime broker that has knowledge and experience in these areas and is capable of providing the type of financing you require. Technology for trade data and portfolio analytics/reports The prime broker should have an online portal where all of your trade data is captured and that provides robust portfolio analytics and reporting. Ideally, the portal should be able to gather trade files from all prime broker/custodial relationships so that aggregated reports can be produced to calculate performance and risk analytics. At a minimum, their system should provide profit and loss (P&L), performance attribution and risk analytics, with the ability to provide much more robust reporting upon request. Also inquire as to the ability to link the prime broker, internal customer relationship management (CRM) and administrators systems to give the firm the ability to create its own portfolio and risk management for its investment and marketing efforts. Trading and trading technology Depending upon your investment strategy, you may require an electronic trading model or a full-service outsourced trading desk. It is important that your prime broker has a robust offering of the trading platform and execution management systems you need across the asset classes and in the markets in which you trade. There is no one size fits all and having options to choose from should provide your team with the right solution. 16

17 Business consulting services Your prime broker should be staffed with professionals who understand your business and can implement solutions across all of the key areas of your business. The consulting services and solutions should not only address the current problem, but also be scalable if the organization executes its business plan and grows to a larger size. Client service Your prime broker should be right sized to meet your needs as a new launch and as you grow and become a large hedge fund with multiple custodial relationships. You do not want to feel like a number as a client, and you should work with professionals who understand your business and have experience growing with new-launch hedge funds like yours. 17

18 PAGE 18 ROLE OF INDEPENDENT DIRECTORS AUTHOR: GEOFF RUDDICK, INTERNATIONAL MANAGEMENT SERVICES LTD. One of the first considerations when looking for an independent director is the underlying reason behind your search. In today s environment, corporate governance is no longer a luxury, but a necessity, and often a requirement. Regulators and exchanges are increasing their scrutiny and investors are demanding it and so should you. Aside from corporate governance, one of the driving factors is often tax-related and therefore independent directors may be appointed in a tax-neutral jurisdiction. Introduction The runner-up questions to selecting an independent director are: How much? (referring to How much do you charge for the provision of independent directorship services? ); and How many boards do you sit on? (translated as How many manager relationships do you service and do you have the capacity to effectively service another one? ); However, the grand prize-winning question is: What do you do? (meaning What role do you play and what value will you add if appointed to the board of directors of the fund? ) The main purpose and underlying theme of this article is to address the third question, then briefly address the other queries in turn. Prior to addressing these queries, it may be helpful to first delve into a bit of background and address a couple of related questions. Duties: What are a director s duties? The basic role of the directors is to oversee the business and affairs of the fund, with the fundamental task of being diligent in representing the interests of the investors. In most common law jurisdictions, such as the Cayman Islands, there are specific legal duties underlying the role of directors. Although beyond the scope of this article, these duties can broadly be summarized as follows: 1) Fiduciary duties loyalty, honesty, and good faith 2) Duties of skill, care and diligence In summary, directors must act in what they believe are the best interests of the fund itself, and avoid putting themselves in a position where they are conflicted between their personal interests and the duties owed to the fund. Terminology: What do independent and non-executive mean? In the context of a hedge fund director, the term independence generally refers to someone who is independent of all service providers the investment manager, administrator, registrar and transfer agent, prime broker, custodian, auditor and legal counsel. The term nonexecutive stems from the typical hedge fund structure, as the fund itself will rarely have any direct employees or, if you will, executives, when referring to the upper echelons. As such, non-executive directors are not employees of the fund and they are not involved in the dayto-day management of the fund s affairs. 18

19 Role: What do you do? An independent director has only an intermittent involvement with a fund s affairs. Provided the fund is investing in conformity with the investment strategies and restrictions as outlined in its offering document, an independent director s role predominantly consists of periodically reviewing the performance of the fund and its service providers, reviewing and executing agreements, attending directors meetings and dealing with any extraordinary issues, such as approving side letters and resolving conflicts. Value-added: What value will you add? Below are a handful of areas in which independent directors add value: INDEPENDENCE Independent directors add value by being free of any relationships with service providers. Such independence helps ensure that the fund abides by the fundamental principles of effective corporate governance. If a director is not independent, conflicts of interest will inevitably arise and interfere with the director s ability to act in the best interests of the fund. REGULATORS, EXCHANGES AND TAX AUTHORITIES The trend towards increased scrutiny by tax authorities, exchanges and regulators is clear, and additional scrutiny appears probable in the future. If the investment adviser to the fund is regulated by the Financial Services Authority or the Securities and Exchange Commission, the representation of independent directors on the boards of investment funds is seen quite favorably. Regulators and exchanges of other jurisdictions now go as far as to require independent board representation. INVESTOR CONFIDENCE Increased vigilance by investors, particularly institutional investors, makes effective corporate governance a top priority. When investors perform their due diligence, independent board representation builds investor confidence as they gain comfort by the increased independence and resulting enhanced corporate governance. Investors know that independent directors will provide the credible decision-making on behalf of the fund that is required in today s environment. Independent board representation not only increases investor confidence, but also can indirectly assist with the marketing of the fund, thus attracting or retaining investors. SERVICE PROVIDER CONFIDENCE, MONITORING AND CONFLICT RESOLUTION Part of the independent director s role is to monitor the performance of all service providers, including the investment manager, in accordance with the terms of their agreements. Without service provider independence, a director may have to confront a conflict of interest, whether at initial establishment when contracts are being negotiated or during the ongoing operation of the fund, regarding issues that may arise as part of: Monitoring service providers performance Adherence and changes to investment strategies and restrictions The valuation of assets Extreme events 19

20 Individual investors and service providers interests often diverge further during extreme market conditions. Issues such as the pricing of the illiquid securities themselves, the knock-on effects of the suspension of NAV calculations, the invoking of gating provisions and the suspension of redemptions have all made headlines as of late. An independent director can assist in making an unbiased determination in the best interests of the fund, its investors and creditors, during such uncertain times. As such, comfort is gained in the knowledge that the independent directors will monitor the performance of the fund and all service providers in both normal and extenuating circumstances. Approval of documentation and agreements The approval, oversight and negotiation of the fund s documents and agreements with service providers are a key component of the role of an independent director. As an example, independent directors usually spend a significant amount of time reviewing the offering document to ensure that material details, such as those below, are fully and accurately disclosed: The fund s structure Investment manager and key personnel Identification of other service providers Investment objective, strategy, universe and restrictions Targeted investor base Frequency of dealings and valuations Anti-money laundering and compliance issues Accounting principles Risk factors Whether the fund will be listed Ultimately, the director accepts responsibility for the contents of the offering document and agreements, and any corresponding omissions, so the process is taken seriously. Jurisdictional/corporate governance knowledge and experience Independent directors resident in the fund s jurisdiction possess specific knowledge and experience of the jurisdictional requirements therein, and have a thorough understanding of the principles of effective corporate governance. Many independent directors work full time to provide this service. They sit on numerous boards and, therefore, have a great deal of pertinent knowledge and experience. 20

21 Where do you start, and what should you be asking? Your legal counsel and administrator are a good starting point and can provide a shortlist of individuals they recommend. Once you have their recommendations you should make additional inquiries to find the individual who is right for the fund. The process of looking for an independent director is somewhat analogous to the search for a new employee and corresponding interview. There are obviously no hard and fast rules or an all-encompassing list of questions you should ask; however, a suggested top ten for consideration follows. Add and subtract as you will; it is by no means all-inclusive but will hopefully point you in the right direction: 1) Independence: Independence is the Holy Grail of effective corporate governance. If a director is not independent, conflicts of interest will inevitably arise and interfere with the director s ability to act in the best interests of the fund. 2) Experience: You can glean a good idea of experience from a person s bio, which will eventually appear in the offering document of your fund. You may also want to ask if candidates have sat on boards with similar strategies. Independent directors do not need to be experts; however, a general understanding of the fundamentals of the underlying strategy is essential. 3) Qualifications: A legal, accounting, compliance, investment or other relevant qualification, combined with experience, will provide a good indication of where a candidate s specific expertise lies and how he or she will add value. 4) Capacity: Capacity is a key concern in any line of work and, arguably, more so in the context of the role of an independent director. The directors oversee the affairs of the fund, and time and effort is required to effectively fulfill their duties. An independent director who has too many appointments will likely be passive in nature, not add much value and should, therefore, be avoided. On the other hand, an independent director who services a reasonable number of manager relationships will possess a great deal of knowledge and experience to the benefit of the fund. 5) Back-up/coverage: Confirm whether your director has a support organization of long standing, with sufficient support infrastructure to cover these contingencies, and if his or her colleagues could be appointed as an alternative should the need arise. Selecting your director from a director services company can carry distinct advantages in such situations. Ascertain whether a director, or directorship services company, has a formal and documented disaster recovery plan in place. Confirm whether it has ever been put to the test and whether it was a success. The reality is that what ifs do happen, and it is critical to know that a director will be able to continue to serve the fund. 6) Regulatory approval or refusal: An individual, or entity, who is approved and subject to a regulatory body s ongoing scrutiny, can offer the reassurance and credibility that he or she is not only fit and proper, but also familiar with the jurisdiction s legal and regulatory regime. 7) Charges/convictions/investigations: Adverse events such as fund blow-ups or fraud that generate negative publicity do happen. By itself, it does not mean that a director implicated is incapable, or guilty of any wrongdoing. Confirm whether the candidate has ever been censured, disciplined or criticized by any professional bodies. If so, ascertain the underlying reasons and confirm whether there was a satisfactory resolution. 8) Insurance: Directors and officers liability insurance is becoming increasingly necessary given today s litigious environment. Depending on the individual candidate and the specifics of the fund, some directors require that insurance be provided by the fund. Others maintain their own policies. Confirmation that insurance coverage is maintained will provide an indication of the financial standing of the individual and organization, as well as provide comfort that they have an understanding of the litigation risks prevalent in today s environment. 9) Remuneration: Directors oversee the affairs of the fund, and time and effort are required to effectively fulfill their duties. Directors have personal liability, and the penalties associated with a failure in fulfilling their duties will far exceed the fees received from their post. 21